My 2004 report stated that "Conservatively speaking, the U.S.
Code contains at least 3,500 offenses which carry criminal
penalties. More real­istically, the number exceeds 4,000." The
estimate of over 4,000, as of the beginning of 2000, rested on an
evaluation of the information already cov­ered by the counts
conducted by DOJ and the ABA and new data for the years 1997
through 1999.

Since the start of 2000, Congress has created at least 452 new
crimes. So the total number of fed­eral crimes as of the end of
2007 exceeds 4,450. Ninety-one of the 452 were contained in new
laws that created 279 new crimes, and the remaining were contained
in amendments to existing laws.[22] The total of 452 new
crimes breaks down by year as follows: 65 for 2000; 28 for 2001; 82
for 2002; 51 for 2003; 48 for 2004; 13 for 2005;
145 for 2006; 20 for 2007. The Appendix to this report lists
all the federal statutes containing new crimes.

The data suggest a potential electoral motivation behind the
growth of the federal criminal law. Except for in 2003, the number
of new crimes enacted in election years significantly surpass those
in non-election years. While this may be due to the two-year cycle
in Congress and the time it takes to pass a bill, work done on
legislation in a previous Congress need not be completely
duplicated. Bills are, for example, frequently re-introduced at the
commencement of the a new Congress.

This study did not perform a statistical analysis of the number
of crimes created in various discrete areas of substantive law. My
2004 report, however, concluded that a large percentage of the new
crimes came in the environmental area. For the years 2000 through
2007, many of the new crimes were in the following areas:

National security, i.e., aircraft security, protec­tion of
nuclear and other facilities, counterfeit/ forged insignia and
documents;

Terrorism and support for terrorists;

Protection of federal law enforcement;

Protection of members of the armed forces;

Protection of children from sexual exploitation; and

Controls on the Internet.

Not surprisingly, many of the new crimes were enacted in
response to the events of 9/11.

Interpretation: A Troubling Trend

As practitioners in the field know well, the num­ber of
criminal statutes does not tell the whole story. Measuring the rate
of growth certainly con­firms that Congress continues to enact
criminal statutes at a brisk pace. But no matter how many crimes
Congress enacts, it remains for federal pros­ecutors to decide
which statutes to invoke when seeking an indictment.

Federal prosecutors have certain favorites, nota­bly mail
and wire fraud statutes,[23] which they use even
when other statutes
might be more applica­ble. That, of course, does not mean that
the addi­tion of little-used crimes is unimportant. The federal
government is supposedly a government of limited powers and,
therefore, limited jurisdiction. Each new crime expands the
jurisdiction of federal law enforcement and federal courts.
Regardless of whether a statute is used to indict, it is available
to establish the legal basis upon which to show prob­able cause
that a crime has been committed and, therefore, to authorize a
search and seizure. The availability of more crimes also affords
the prose­cutor more discretion and thereby greater leverage
against defendants. Increasing the number and variety of charges
tends to dissuade defendants from fighting the charges, because
they usually can be "clipped" for something.

Moreover, the expansion of federal criminal law continues to
occur even without new legislation. Federal prosecutors regularly
stretch their theories of existing statutes. For example, federal
courts often cooperate with prosecutors by making new laws apply
retroactively. What Judge John Noonan wrote in 1984 about bribery
and public corruption continues to be generally true, namely that
federal prosecutors and federal judges have been effec­tively
creating a common law of crimes through expansive
interpretations.[24]

Ultimately, the reason the ABA report and this report track the
increase of federal crimes is to pro­vide some measure of the
extent to which federal criminal law and its enforcement are
over-reaching constitutional limits. The Supreme Court has
admonished Congress twice within recent years, when it declared
federal statutes unconstitutional, that it lacks a "plenary police
power."[25] The statisti­cal
measures in this and
the ABA report indicate that those cases have not dissuaded
Congress from continuing to pass criminal laws at the same
pace.